Takamore body-snatching case could lead to standoff

SHANE COWLISHAW AND OLIVIA WANNAN

Last updated 05:00 19/12/2012

BURIAL SAGA: James Takamore died of an aneurysm in August 2007.

PHIL REID/Fairfax NZ

CUSTOMARY PRACTICE: Josephine Takamore arrives at the Supreme Court in Wellington for the hearing on a continuing dispute about the burial of her brother James by his Tuhoe relatives without his widow’s consent.

FAMILY: Denise Clarke in 2007 shortly after her partner, James Takamore died.

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A Supreme Court ruling in the Takamore body-snatching case looks set to test "uncharted cultural waters".

The decision, a culmination of five years of legal action between James Takamore's partner and his whanau, could also lead to a standoff between Tuhoe and authorities.

Mr Takamore died of an aneurism in 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke and his two children for nearly 20 years. But his Tuhoe relatives spirited his body from the funeral parlour to his original birthplace in the Bay of Plenty, where they buried him next to his father at Kutarere Marae, near Opotiki.

Ms Clarke, who is executor of Mr Takamore's estate, obtained a High Court judgment confirming her right to decide his burial place and ordering an exhumation.

The decision was upheld in the Court of Appeal, but Mr Takamore's sister, Josephine Takamore, appealed to the Supreme Court against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the location of burial.

In a decision published yesterday, Chief Justice Dame Sian Elias said Ms Takamore's appeal had been unanimously dismissed.

But she ruled that neither of the stances taken by the two parties was entirely correct.

Ms Clarke did not have exclusive discretion as to where the body would be buried, but her views would be highly influential. Mr Takamore's whanau did not have an absolute right either, but their views would also be highly regarded.

Dame Sian ruled that, although the cultural claims were powerful, Mr Takamore's own preferences and life choices should also be taken into account.

"I have concluded that Ms Clarke should be given the right to determine where Mr Takamore is to be. He made his life with her for more than 20 years and they have two children together.

"During their time together, Kutarere was left behind. That may not have been Mr Takamore's personal preference - it is impossible to know - but it was the choice he made in his life out of commitment to Ms Clarke and his children."

Ms Clarke did not want to comment yesterday, but her lawyer, Gary Knight, said there was a "profound sense of relief".